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Genetics, Race and Substantive Due Process

An emerging narrative of racial transcendence has taken root in our law, politics and public consciousness. The end of de jure racial discrimination in the United States, coupled with the adoption of equal opportunity laws during the Civil Rights Era, has fostered an assumption shared by many that we now live in a colorblind and, perhaps, post-racial society. America has elected its first African-American President, viewed by many as proof that our society has finally moved beyond race. Our courts have similarly employed a colorblind constitutionalism to disregard systemic racism as a relic of times past, while invalidating race-conscious attempts to remedy existing racial inequality.

And yet social and economic disparities based on race persist. As the “Great Recession” rages on, disparities between the rich and poor and white and non-white have been exacerbated. The rate of income inequality between the richest Americans and the middle-class and poor has eclipsed the previous high set during the Great Depression. The wealth gap between white and non-white households, similarly, has escalated to its highest level in twenty-five years. As the degrees of economic inequality continue to rise during the current financial storm, so do startling race-based disparities in a variety of social contexts; including education, health outcomes, and rates of incarceration.

The persistence of racial inequality creates a dilemma for the post-race, colorblind perspective. Racism, after all, is viewed through this lens as aberrational and non-systemic in nature. Historically, the artifice of “race” evolved to resolve such a moral dilemma by legitimating the existence of social, economic and legal inequality on the grounds of biological inferiority. A product of the scientific sophistry and political exigency that marked early European Modernity, the concept of biological difference was relied on for hundreds of years to justify the enslavement, genocide and unequal treatment of persons deemed “non-white.” In the terrible wake of chattel slavery in the United States and the Holocaust of World War II, the Postwar World rejected biological theories of racial difference in the face of conclusive evidence of the socio-political reality of race. Race, it was finally agreed, had no natural biological or genetic meaning. Rather, it was recognized that the taxonomy of race was constructed as a means to impute socio-political meaning to perceived human differences in order to morally rationalize unequal human treatment.

In the modern Postwar World, it was no longer legally, scientifically, or politically appropriate to justify the existence of racial inequality in terms of biological difference. Social inequities based on race were finally acknowledged as stemming from past and present structural discrimination. For a brief period during the Civil Rights Era, our society was thus able to enjoy significant advancements in the expansion of constitutional rights, the end of de jure public school desegregation, and the pursuit of other affirmative measures to address entrenched, structural racism. The desire by society to distance itself from moral responsibility for past and present racial disparities, however, did not completely fade. Extensive racial disparities continued to persist following the Civil Rights period, and an ideology of colorblind constitutionalism – that social policy should be blind to existing racial disparities – filled the void. The doctrine of “equal opportunity,” for instance, has been employed to justify persistent racial disparities as the product of cultural depravity and a lack of individual responsibility. In a similar fashion, classic market theory has been oft relied on to rationalize continuing racial inequalities as the natural products of non-biased market processes, rather than the symptoms of past and present structural racism.

As our society ascends into the 21st Century, we continue the struggle to take account of race and racial inequality. The moral need to reconcile pervasive racial disparities with the comforting perception of racial transcendence and absolution has never been stronger. The courts and public continue to rely on time-tested sophisms, such as the doctrine of equal opportunity and market theory, to explain why inequalities continue to exist in the assumed absence of structural racism. Yet these dated colorblind distancing strategies may no longer be sufficient to assuage the cognitive dissonance and moral shame stoked by acknowledging continuing inequality. After all, the devices of equal opportunity, colorblind constitutionalism, and market deregulation have been in force for decades – during which time we have seen racial disparities increase rather than decrease.

The undiminished desire to interpret the world in post-race and colorblind terms has found a fresh, yet familiar, rationalization for existing inequality that sounds in genetic racial difference. Reminiscent of the discredited racial biologies of yore, the emerging scientific, social and legal trend is to treat race as a scientifically relevant grouping of persons. The modern field of population genetics has been relied on to support dubious claims that “race” can be distilled to a meaningful biological essence. A scientific analysis of a sample of deoxyribonucleic acid (“DNA”) can purportedly empirically determine an individual’s biological race, even though it relies on the same antiquated (and discredited) racial taxonomies first developed during the 1700s. As such, pharmaceutical companies are spending millions of dollars to develop and market race-based drugs. Private genetic companies have also popularized DNA testing with the misleading claim that they are able to scientifically isolate a person’s racial and ethnic ancestry. The United States Patent and Trademark Office (USPTO) has similarly entered the fray by approving race-based biotechnology patents. And perhaps most disturbingly, modern genetic theories of race have obtained the official imprimatur of law, as state and federal courts throughout the United States routinely permit the admission of racial DNA probabilistic evidence. It is now, for instance, normal for courts in criminal cases to admit evidence that there is only a “1 in 40 million chance” that another “Hispanic-American” or “African-American” or “Caucasian” or “Native-American” or “Asian-American” or “Puerto-Rican” or “Caribbean-American” shares the same genetic profile as a criminal defendant.

The reemergence of a biological understanding of race is not surprising, both given the recentness of our history of manipulating science to validate racial difference and the increasing cognitive and moral need to rationalize continuing racial inequalities as normal and natural in a “post-race” era. This Article links the modern trend to view race in genetic terms to the post-race worldview, while framing the doctrinal and constitutional argument against the legal acceptance of genetic racial theories. The first section of the Article will chart the historical invention of the race concept, while highlighting the critical role that science has played in shaping our understanding of race and difference. The section will also examine the Postwar rejection of biological theories of race, while further elaborating on the socio-political nature of race.

Part II of the Article explores the conflicting ways in which our Postwar society has interpreted racial inequality. A model of race consciousness dominated the manner in which our society viewed existing racial disparities during the Civil Rights era, yet was soon displaced by colorblind and post-racial interpretative methodologies. This section examines this history, while relying on psychological theory to suggest that such post-race distancing moves are motivated by an implicit desire to move beyond race and conceal systemic racism.

Part III of the Article analyzes the modern trend to view race in genetic terms, and explores the manner in which the field of population genetics has been relied on to normalize scientific racial distinctions. This section also analyzes the judicial acceptance of racial probabilistic interpretations of DNA evidence, and sets forth a doctrinal critique of the practice under the Federal Rules of Evidence. In particular, this section argues for an amendment to the Federal Rules of Evidence that would clearly establish the inadmissibility of such evidence at trial.

The final section of the Article sets forth a substantive Due Process challenge to the legal acceptance of genetic theories of race. This section argues that the substantive Due Process doctrine underlying the 5th and 14th Amendments, as informed by the 9th Amendment, is violated whenever the State officially embraces genetic views on race. In particular, this section argues that such a practice violates the fundamental constitutional right to a common humanity by placing State imprimatur on discredited notions of racial biological difference.